P. v. Pryce

Filed 9/29/06 P. v. Pryce CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

Richard Schwartzberg for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Kristen K. Chenelia and Keith Lollis, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Omar Sheriff Pryce challenges his convictions for armed robbery, first degree burglary, street terrorism, and receipt of stolen property, on two grounds. With respect to each, we conclude the trial court did not abuse its discretion, and therefore affirm the judgment.

First, defendant argues the trial court erred by denying his motion to sever the street terrorism charge from the other charges and to bifurcate a gang enhancement. Because the evidence related to the armed robbery charge and the street terrorism charge would be cross-admissible, the street terrorism charge would be unlikely to unduly inflame the jury vis-Ã -vis the robbery charge, and because the robbery case was strong on its own, the trial court was well within its discretion to deny defendant’s motion to sever and/or bifurcate.

Second, defendant argues the trial court erred by admitting into evidence a gun found in defendant’s bedroom two weeks after the robbery. Although two witnesses to the robbery could not positively identify the gun as one used in the robbery, they also could not exclude it. The gun was relevant not only to the armed robbery charge, but also to the street terrorism charge. Therefore, the trial court did not abuse its discretion in admitting the gun into evidence although there was no unequivocal evidence connecting it directly to the robbery.

Statement of Facts

Police Surveillance of Lowell Thomas III

The Buena Park Police Department was conducting surveillance of Lowell Thomas III’s house on January 31, 2002. About 7:45 p.m., defendant drove up to Thomas’s house in a white Oldsmobile, and picked up Thomas and Jerry Johnson. The police followed defendant’s car to a Sprint cellular telephone store, where defendant, Thomas, and Johnson entered the store and appeared to go to separate locations within the store. The police observed defendant, Thomas, and Johnson in the store; none of them talked to each other or to any store employee, and none bought anything in the store. Officer Ian Anderson opined they were casing the Sprint store.

Robbery of Herbert S.

On February 1, 2002, 14-year-old Herbert S. received a telephone call from Vanessa Becerra. Becerra had previously dated Charles L., Herbert’s cousin. Becerra asked Herbert if she could come by to drop off a picture of herself; Herbert agreed. Thomas, Becerra’s new boyfriend, intended to go to Herbert’s house to beat up Charles because Charles had been bad-mouthing him. Defendant drove Becerra and Thomas to Herbert’s house in his white Oldsmobile.

Becerra and Thomas arrived at Herbert’s house soon after 5:00 p.m. They went upstairs with Herbert and talked. Thomas told Herbert that his car’s tire had popped and excused himself to call the Automobile Club of Southern California (AAA). Thomas went outside and called defendant to let him know Charles was not at Herbert’s house. Thomas returned upstairs.

A few minutes later, two tall Black males entered the house wearing ski masks and brandishing handguns; Thomas testified he recognized them as defendant and Johnson by their voices. They ordered Thomas, Herbert, and Becerra to the floor and said, “Blood, where is Charles?” The gunmen put a hood over Herbert’s head and took him to his bedroom and his mother’s bedroom while going through their things. They left Herbert in his mother’s bedroom, after threatening to shoot him if he took off the hood. Herbert was scared and feared the gunmen would harm him. A few minutes later, Thomas came in to Herbert’s mother’s bedroom and took the hood off Herbert’s head. Either Becerra’s or Thomas’s cell phone rang, and they told Herbert AAA was waiting by the car. Before leaving, Thomas told Herbert not to call the police because that would make the gunmen more angry and they would want to come back.

Herbert testified the gunmen took jewelry, a Sony PlayStation 2 videogame system, video games, DVD’s and CD’s. Herbert’s neighbor called the police.

Unrelated to the robbery, the police began surveillance on Thomas’s house between 6:00 and 6:30 p.m. that same evening. About 10 or 15 minutes later, defendant pulled up in a white Oldsmobile; Thomas, Johnson, and one unidentified Black male came out of the house and got into the car.

The police searched Thomas’s house on February 3, 2002. They found a nine-millimeter pistol in Thomas’s bedroom and a handgun in Johnson’s room. The police also found a CD case and CD’s which Herbert identified as those stolen from him and some of which had Herbert’s handwriting on them.

The police searched defendant’s residence on February 14, 2002. They found a loaded .45-caliber semiautomatic handgun with two additional ammunition magazines in defendant’s bedroom. They also found a PlayStation 2 game system with Herbert’s memory card inside it, a ski mask, and DVD’s matching a list of those stolen from Herbert’s house.

Gang Evidence

Detective Abel Morales testified as a gang expert for the prosecution. Morales opined that defendant was an active member of the Insane Crips gang on February 1, 2002 and participated in the robbery of Herbert for the benefit of the gang. This opinion was based on defendant’s criminal history, the items found during a search of defendant’s bedroom, the fact Insane Crips members are known for committing home invasion robberies, and the fact the robbery was committed with another Insane Crips gang member -- Thomas.

Morales testified generally that gang members try to earn respect from other gang members and the community by committing crimes for their gangs. Gang members also seek to instill fear in their communities through their crimes. Possession of guns is a means for earning respect and creating fear.

Morales testified the Insane Crips gang is one of the largest Black gangs in Long Beach, with about 600 members. Their principal rivals are the Bloods, the Rolling 20’s, and Hispanic gangs. Insane Crips gang members wear the color blue and use two hand symbols -- a gun to the head, and three fingers held up. The primary activities of the Insane Crips include murders, drive-by shootings, burglaries, home invasion robberies, takeover bank robberies, drug rip-offs, and drug sales. Insane Crips gang members often use their girlfriends or other friends to gain access to homes to commit home invasion robberies or setup robberies.

Morales believed Thomas was an active member of the Insane Crips in February 2002. Thomas had told the police he associated with the Insane Crips when he lived in Long Beach; he had been in the presence of Insane Crips gang members when contacted by the police, and was with known Insane Crips gang members while they committed crimes. When the police searched Thomas’s home, they found letters and a photo album filled with references to the Insane Crips gang.

Defendant’s past conduct also demonstrated a pattern of associating with other gang members and of committing thefts. In 1999, defendant stole a pair of blue shoes and a blue suit, and also stole a ticket book from a Garden Grove police officer. A condition of defendant’s probation for stealing the shoes and suit was to not associate with members of the Crips gang. Defendant’s parents told his probation officer defendant was hanging around possible gang members; defendant also suffered numerous curfew violations. Also in 1999, a passenger in a car defendant was in shouted “Crips” and threw gang signs at members of the Royal Samoan Posse, a rival gang associated with the Bloods; a fight ensued. One passenger in the car was a known member of the Gateway Crips gang.

In 2000, defendant was found in possession of drugs for sale and drug paraphernalia. At that time, police officers searched defendant’s house and noticed his computer screen saver read “slob killer.” “Slob” is a derogatory term for members of the Bloods gang, which is used by Crips gang members. The officers found photographs of defendant throwing Insane Crips gang signs. Defendant wore blue rubber bands in the braids in his hair and had a tattoo reading “Hydro.”

When the police searched defendant’s home in 2002, they found a letter written to defendant reading “2/1,” referring to the Insane Crips gang, and “[b]e true to your blue,” meaning stay loyal to your gang. The officers also found notebooks filled with rap lyrics containing references to gangs and gang activities. Defendant’s lyrics substituted the letters “cc” for the letters “ck”; for example, one notebook contained the following: “[T]hey call me Hydro and this is -- fucc yo hood gangster Crip.” Morales testified Crips gang members do this because “ck” stands for “Crip Killer.” Morales also testified defendant called himself a Crip in this particular lyric, and further opined it would not be permissible in the gang culture to identify yourself as a gang member if you are not.

On September 11, 2002, defendant was pulled over while driving through Long Beach with two loaded guns in his car. Defendant’s passenger was a male with the last name of Calhoun, whose family members belong to the Long Beach Insane Crips. While in jail, defendant continued to replace the letters “ck” with the letters “cc” in his writings.

Defense Evidence

Defendant testified on his own behalf. He denied being a gang member; he testified he writes lyrics for gangster rap music.

Defendant testified as follows: he was at Thomas’s house on January 31, 2002, and left his video game and memory card there. The next day, defendant picked up his sisters at school and went to Anthony Smith II’s house to play video games. Defendant took Smith to get his hair braided at 4:00 p.m., and returned to Smith’s house after 5:00 p.m. (Smith testified and confirmed defendant took him to get his hair braided that day.) Defendant bought cigarettes for Smith’s mother, and then returned to his own house. Once he was home, defendant realized his Grand Theft Auto video game and PlayStation 2 memory card were at Thomas’s house. Defendant called Thomas and told him he was going to pick them up. Thomas met defendant outside Thomas’s house and gave defendant what defendant thought were his own video game and memory card. Defendant then gave Thomas and two others a ride to Becerra’s house. After a brief stop, defendant drove Thomas and the others back to Thomas’s house, and then returned home.

Defendant testified he bought the PlayStation 2 in his room at Best Buy. (On rebuttal, the prosecution introduced an affidavit from Sony that the PlayStation 2 found in defendant’s room was purchased at Toys “R” Us.) Defendant testified he had a handgun in his room for self-defense because his recording equipment had been stolen. He said he also used the gun and a ski mask as props when posing for album covers or posters.

Morales agreed defendant had never received a STEP notice, there were no field identification cards identifying him as a gang member, and defendant had never admitted being a gang member. Steven Strong, a licensed private investigator, testified as a gang expert for the defense. Strong opined the robbery of Herbert was not gang-related because it was out of character for Crips gang members. Strong testified a Crips gang member would never say “Blood” because it would give the Bloods respect. Strong had never heard of a Crips gang member pretending to be a Blood gang member while committing a crime. Strong did not believe the robbery was committed to gain respect, because the robbers were in disguise.

Procedural History

Defendant was charged in an amended information with first degree robbery, acting in concert with two or more persons (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1) [count 1]); first degree residential burglary (id., §§ 459, 460, subd. (a) [count 2]); street terrorism (id., § 186.22, subd. (a) [count 3]); and receiving stolen property (id., § 496, subd. (a) [count 4]). The information alleged the following enhancements: on count 2, a nonaccomplice was present during the burglary (id., § 667.5, subd. (c)(21)); on counts 1 and 2, defendant personally used a firearm (id., §§ 12022.53, subd. (b), 12022.5, subd. (a), respectively); and counts 1, 2, and 4 were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)).[1]

A jury convicted defendant on all four counts, and found all the enhancements to be true. Defendant was sentenced to a total term of 24 years in prison, calculated as follows: the midterm of four years on count 1; the low term of two years on count 3, to be served concurrently to count 1; the low term of two years on count 5, to be served concurrently to count 1; 10 years for the Penal Code section 186.22, subdivision (b)(1) enhancement on count 1, to be served consecutively; and 10 years for the section 12022.53, subdivision (b) enhancement, to be served consecutively. The trial court stayed defendant’s prison sentence on counts 2 and 4, pursuant to section 654. Defendant timely appealed.

Discussion

I.

Did the trial court err in denying defendant’s motion to sever the street terrorism charge and bifurcate the gang enhancement?

Before trial, defendant asked the court to sever the substantive street terrorism charge from the other charges, and to bifurcate the gang enhancement. We review the trial court’s denial of the motion for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [bifurcation of enhancement]; People v. Marshall (1997) 15 Cal.4th 1, 27 [severance of charges].) Our review of the trial court’s denial of the severance request is confined to the facts before the court at the time the motion was decided. (People v. Price (1991) 1 Cal.4th 324, 388.) The standard for reversing a trial court’s order denying severance or bifurcation is high. “When the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court. [Citations.] We review the trial court’s decision ‘in light of the showings then made and the facts then known.’ [Citation.]” (People v. Marshall, supra, 15 Cal.4th at p. 27.) “[A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.” (People v. Arias (1996) 13 Cal.4th 92, 127.) Reversal of an order denying a motion to sever requires the defendant to show the joinder of the charges “resulted in ‘gross unfairness,’ amounting to a denial of due process. [Citation.]” (Ibid.)

In denying the motion, the trial court stated: “What convinces me that I shouldn’t bifurcate is this: Two things. First, this notebook. Your client puts himself as a gang member perhaps. He talked about home invasions. There are references. That’s one.

The second is at the crime itself, there are allegations of Blood this; Blood that. It could be totally innocent. But it also, given the nature, what I know about the notebook, I would let the jury . . . decide if it’s not gang related. And I think it would be unfair not to let them do it.

And I am well aware of the prejudice that gang allegations do to defendants. And you [have] got to be careful.

If there weren’t any references to the Blood and there weren’t this notebook, I[] probably would go along with it even if they filed it, I would probably bifurcate.

But staring at those two things, I don’t think it would be fair. I think the probative value outweighs the prejudicial value and I think it’s something that the jury can look at. Without those two things, I think I would go along with you, [defense counsel], even though their expert may say it’s gang related. I might have a problem with that.

But I think there’s [w]hat’s given to me that they can stick with that gang expert testimony to allow that to go in front of the jury. And I feel confident that its probative value outweighs the prejudicial value so I would not bifurcate.”

“Whether a trial court abused its discretion in denying a motion to sever necessarily depends upon the particular circumstances of each case. [Citations.] The pertinent factors are these: (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; [and] (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses . . . . [Citation.] A determination that the evidence was cross-admissible ordinarily dispels any inference of prejudice. [Citations.]” (People v. Marshall, supra, 15 Cal.4th at pp. 27-28.)

In this case, the trial court did not abuse its discretion in denying defendant’s motion. The street terrorism charge was inextricably intertwined with the robbery and burglary charges. Evidence relevant to the street terrorism charge was also relevant to the robbery charge, such as the gangster rap lyrics found in defendant’s home that not only appeared to connect him with the Insane Crips gang, but also described home invasion-style robberies similar to the robbery of Herbert, and references to “Blood” during the robbery which could have been gang references. The street terrorism charge was not likely to inflame the jury more than the charge of an armed robbery of a 14 year old. And the evidence supporting the robbery and burglary charges was strong, given the testimony of Thomas and the fact property stolen during the robbery was found in defendant’s possession. (See People v. Burnell (2005) 132 Cal.App.4th 938, 947.)

Even if the trial court erred by refusing to sever the street terrorism charge and bifurcate the gang enhancement, the error was harmless. It is not reasonably probable the outcome would have been more favorable to defendant if the charges had been severed, or the gang enhancement bifurcated. (People v. Pinholster (1992) 1 Cal.4th 865, 931-932; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant’s involvement in the robbery of Herbert was strong. Defendant was observed by the police the night before the robbery casing a cellular telephone store with Thomas and Johnson, both of whom were directly involved in the robbery of Herbert the next day. Defendant was also observed by the police with Thomas and Johnson soon after the robbery. A PlayStation 2 videogame system and DVD’s taken during the robbery were found in defendant’s house. A handgun that might have been used in the robbery was also found in defendant’s home. Even without the gang-related evidence, the case against defendant was strong. (See People v. Burnell, supra, 132 Cal.App.4th at p. 948.) We conclude the trial court did not abuse its discretion by denying the motion to sever and/or bifurcate.

II.

Did the trial court err by admitting evidence of defendant’s possession of a .45-caliber semiautomatic firearm?

Defendant argues the trial court erred by admitting into evidence a .45-caliber semiautomatic handgun found during a search of his house. We review this issue for abuse of discretion. (People v. Heard (2003) 31 Cal.4th 946, 972-973.)

Defendant objected to admission of the gun found at his house into evidence as irrelevant and more prejudicial than probative. Defendant contends the gun was never positively identified by either Thomas or Herbert as one of the guns used in the robbery. Herbert testified both robbers had handguns, but he did not remember the color of the guns, or whether they were revolvers or semiautomatic guns.

Thomas testified the robbers had at least one semiautomatic gun, but was unsure of the color. When shown a picture of the gun found in defendant’s bedroom, Thomas testified the gun looked similar, but he did not believe the gun used in the robbery was chrome. Neither Thomas nor Herbert could identify or eliminate the gun found in defendant’s room as one of the guns used in the robbery.

“Q. How does this gun compare to the gun that you saw in the robbery?

“[Thomas] A. Big. I don’t believe the gun was chrome. I don’t [sic] see what color it was. I know it was a big gun and it didn’t have a revolver on it.

“Q. Okay. So there’s some similarities about this gun to the gun you remember, the guns?

“A. Yeah.

. . .

“Q. . . . But would you describe the color [of] the gun that I’m showing you . . . as chrome?

“A. Yeah.

“Q. And your recollection was probably not chrome?

“A. Yeah, most likely.”

The fact the gun found at defendant’s home could have been one of the guns used in the robbery was sufficient for the trial court to decide it was admissible. In People v. Farnam (2002) 28 Cal.4th 107, 156-157, our Supreme Court held, “Evidence that defendant possessed a knife two months after the Mar crimes, coupled with the evidence that the perpetrator of the Mar crimes used a sharp instrument, consistent with defendant’s knife, to slit a screen door and sever two telephone cords at the Mar residence, tended to establish that defendant was the perpetrator. ‘Standing alone the inference may have been weak, but that does not make the evidence irrelevant.’ [Citation.] The fact that many persons may similarly have possessed such a knife ‘may diminish the strength of the evidence, but it does not make it irrelevant.’ [Citation.]

It does not matter that the prosecution could not conclusively connect defendant’s knife to the Mar crime scene.” Similarly, where the actual weapon used in committing a crime is unknown, and an item found in a defendant’s house could be the weapon, that item is admissible. (People v. De La Plane (1979) 88 Cal.App.3d 223, 239 [sawed-off axe handle found in house where the defendant was arrested could have caused the victims’ injuries].)

Here, defendant’s possession of a gun that could have been used in the robbery created an inference he was, in fact, one of the robbers. Additionally, his possession of a gun was relevant to the street terrorism charge, because the gun created an inference of his membership in a criminal street gang, given the expert’s testimony regarding the importance of guns in gangs and the gang culture. The gun had some tendency in reason to prove at least two disputed facts--defendant’s participation in the robbery of Herbert and defendant’s commission of the crime for the benefit of a criminal street gang. (Evid. Code, § 210.) The gun was relevant, and therefore admissible. The trial court did not abuse its discretion in admitting the gun into evidence.

Even if the trial court erred in admitting the gun, the error was harmless. It is not reasonably probable the outcome would have been more favorable to defendant if the gun had not been introduced. As noted above, the evidence of defendant’s participation in the robbery was strong. Defendant was positively identified by Thomas as one of the robbers, and was in possession of property stolen during the robbery.

Disposition

The judgment is affirmed.

FYBEL, J.

I CONCUR:

SILLS, P. J.

Aronson, J., concurring.

I concur in the disposition, but analyze the severance/bifurcation issue differently. Defendant correctly noted there is no reason not to bifurcate gang allegations or sever a street terrorism charge when the sole issue at trial is identification and the gang evidence offers little or no probative evidence on this score. Defendant did not make this point below, however, arguing instead that the prosecution improperly combined a weak case on the robbery and burglary charges with evidence demonstrating defendant’s gang connections and the inherent prejudice this entails. But defendant failed to make any showing the robbery and burglary case was weak or that the gang charges were either strong or weak “so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses . . . .” (People v. Burnell (2005) 132 Cal.App.4th 938, 947.) As the majority points out, we must examine the severance/bifurcation ruling based solely on the evidence and arguments offered at the hearing and not on subsequent events occurring at trial. Here, defendant failed to inform the trial court the defense was misidentification, and failed to establish the prosecution combined a weak case with either a strong case or another weak case. Consequently, defendant failed to meet his burden of showing the denial of the severance/bifurcation motion resulted in “gross unfairness.” (People v. Arias (1996) 13 Cal.4th 92, 127.)

ARONSON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] Defendant was also charged with possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a) [count 5].) The information alleged defendant was released from custody with charges pending for receiving stolen property and possession of a concealed firearm at the time he committed count 5. (Pen. Code, §§ 496, subd. (a), 12031, subd. (a), 12022.1.) Before trial, defendant pleaded guilty to count 5 and admitted the attendant enhancements.